ii» 


^^^m 


0 
0 
0 


8 


Baldwin 

The  growth  of  Law 
during  the  past  Year 


N 


■1 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


The  Growth  of  Law  During 
the  Past  Year 


Annual  Address  Delivered  Before  the 

Bureau  of  Comparative  Law  of  the 

American  Bar  Association 

Boston,  September  3,  1919 

By 
SIMEON  E.  BALDWIN 

Director  of  the  Bvreau 


i 


i 


I 


AXXrAL  ADDRESS. 

HY 

SIMEON  E.  BALDWIN, 

OF    CON.XECTICUT. 
DIRECTOR    OF    THE    Hl'RE^Vt'    OF    COMPARATIVE    LAW. 

THE  GROWTH  OF  LAW  DURING  THE  PAST  YEAR. 

Law  is  always  changing-  its  dress.  It  puts  on  some  new  things 
and  drops  some  ohl  ones.  Generally  it  puts  on  more  than  it  takes 
off.  In  some  years  it  puts  on  less  than  it  takes  oflP.  This  has  been 
pucli  a  year. 

Ax  Eba  of  Repeal. 

Cuming  late  into  the  world  war,  the  Fnited  States  found  the 
other  great  powers  already  equipped  with  such  laws  and  decrees 
as  they  thought  fittest  for  their  protection.  It  followed  where 
they  led,  and  in  some  instances  went  farther  than  most  of  them. 
Since  the  armistice  of  Xovember,  1918,  the  course  of  legislation 
has  run,  with  accumulating  rapidity,  towards  statutes  and  decrees 
of  repeal. 

I  say  "•  decrees,*'  because  there  have  been  many,  proceeding 
from  the  President,  or  from  executive  boards  constituted  by  au- 
thority of  the  United  States  for  purposes  incident  to  the  war,  or 
from  state  governments,  Avhich  without  bearing  the  name  of  stat- 
utes, have  l)een,  within  their  proper  field,  of  equal  force,  under  the 
principle  tliat  public  danger  may  warrant  the  substitution  of 
executive  process  for  judicial  process.* 

FoRKKiN  Commerce. 

The  President  has  now  either  revoked  or  softened  a  large  part 
of  his  jirohibitor}'  orders,  issued  on  our  coming  into  the  war. 
which  affected 
various  kinds. 

*  Meyer  vs.  Peabody,  212  U.  S.,  78,  85. 


which  affected  commercial  intercourse  with  foreign  countries  of 


1019879 


4 

The  new  policy  of  Congress  as  to  encouraging  foreign  trade 
is  in  striking  contrast  to  the  views  of  which  the  Sherman  Act 
was  an  expression.  Not  only  is  the  formation  of  export  trade 
associations  freely  permitted,  but  their  business  can  be  carried 
on  under  an  agreement  that  no  member  can  sell  for  export  except 
through  it  or  by  its  leave.  Several  enormous  combinations  of  this 
character  have  already  been  formed. 

The  government  also  has  gone  into  foreign  trade  directly  on 
its  own  account,  and  organized  a  War  Finance  corporation  with 
a  capital  supplied  by  the  United  States  of  $500,000,000.  The 
United  States  is  the  sole  stockholder. 

It  has  sought  the  aid  of  the  states  in  incorporating  some  of  its 
official  agencies.  A  majority  of  the  members  of  the  "  War  Trade 
Board  ^'  obtained  incorporation  in  1918,  under  the  name  of  the 
"  War  Trade  Board  of  the  United  States,  Eussian  Bureau,  In- 
corporated," under  the  general  incorporation  laws  of  Connecticut. 
The  authorized  capital  was  $5,000,000.  Each  signer  of  the 
articles  of  association  subscribed  for  one  share,  and  the  chairman 
also  subscribed  for  49,990  shares  as  "  Chairman  of  the  War  Trade 
Board."  The  incorporation  is  in  perpetuity  and  the  capital  was 
supplied  by  the  President  of  the  United  States  out  of  the  hun- 
dred million  dollar  appropriation  to  be  expended  by  him  for 
national  security  and  defence.  The  "  certificate  of  incorpora- 
tion "  describes  its  purposes  as  embracing,  among  other  things, 
carrying  on  a  general  mercantile  and  commercial  business  in  any 
part  of  the  world ;  engaging  in  all  kinds  of  manufacturing ;  and 
building,  buying,  and  operating  railways,  telephone  and  telegraph 
systems,  gas  and  electric  light  companies;  canals  and  irrigation 
systems;  shipping  and  warehouses;  and  engaging  in  banking; 
all  in  any  part  of  the  world  outside  of  the  State  of  Connecticut. 

A  considerable  business  has  already  been  transacted  by  this 
board  in  making  exports  to  Eussia. 

Procuring  such  a  charter  for  such  objects  is  one  of  the  tokens 
of  the  closer  union  of  state  and  national  activities  accomplished 
by  the  great  world  war.  To  get  a  perpetual  grant  of  such  priv- 
ileges from  Congress,  if  possible  at  all,  would  have  been  likely  to 
take  months  of  effort.  Under  the  American  principles  of  freedom 
of  incorporation,  as  administered  in  the  states,  it  was,  or  might 
have  been,  an  affair  of  a  few  hours. 


Till-;  Takis  I'kack  Coxfkkknc  k. 

A  serious  attempt  has  liccu  made  during  tJie  last  ivw  mouths, 
by  ail  international  conrcreiice  at  Paris,  to  shape  a  scheme  for 
world  government  as  respects  many  of  ilic  international  relations 
which  are  of  the  higlicst  importance. 

The  conference  has  been  so  organized  as  to  leave  the  main  con- 
trol of  its  proceedings  with  the  great  Powers,  exclusive  of  Iiussia. 
In  the  Rules  of  the  Conference  they  are  named  (the  United  States, 
the  British  Empire,  France,  Italy  and  Japan)  and  described  as 
"  the  belligerent  Powers  with  general  interests."  Most  of  the 
other  belligerent  powers  are  described  as  having  "  special  in- 
terests." iS'eutral  powers  and  states  in  process  of  formation  are 
only  to  be  heard  as  to  matters  directly  affecting  them,  and  then 
only  if  summoned  in  Ijy  the  powers  with  general  interests.'' 

The  treaty  of  peace  with  Germany,  which  they  have  prepared, 
embodies  a  detailed  Constitution  for  a  League  of  Xations.  This 
has  already  been  ratified  by  several  of  the  great  Powers,  and  has 
been  treated  by  the  Confe'rence  and  in  the  treaty  with  Poland  of 
last  summer  (Art.  XIII)  as  now  in  force  as  respects  certain 
matters  of  large  importance.  As  completed  by  that  body  it  made, 
as  submitted  to  our  Senate,  a  volume  of  about  200  pages.  Built 
up,  as  it  necessarily  must  have  been,  on  a  series  of  compromises, 
it  was  inevital)lo  tliat  such  a  document  must  contain  some  pro- 
visions obscurely  worded. 

The  so-styled  "  Supreme  Council "  of  the  great  Powers,  which 
is  for  the  time  being  the  voice  of  the  Conference,  decided  on 
July  29,  to  appoint  a  permanent  commission,  to  co-ordinate  and 
interpret  it.  This  connnission  is  to  be  comprised  of  five  members, 
each  representing  one  of  the  great  Powers,  and  it  is  not  expected 
to  sit  until  the  treaty  shall  have  gone  into  full  effect. 


&^ 


Interntional  Tribunals. 
Xo  provision  whatever  is  made  by  the  treaty  for  the  creation 
of  any  international  court,  excepting  the  special  tribunal  for  tid- 
ing the  former  Kaiser  (Art.  227),  aiul  the  mixed  Arbitral  Tri- 
bunal (Art.  304,  et  srq.),  M'hich  is  essentially  an  administrative 
bureau.    It  contemplates,  however,  the  future  creation  of  a  "  Per- 

*Am.  Journal   of  International  Law,   Supplement,  XIII. 


6 

nianeJit  Court  of  Jiiteruatioiial  Justice"'  (Art.  4"^G)  as  a  ])art  of 
the  plan  for  organizing  an  international  control  over  labor. 
Whether  the  "  Permanent  Court  of  Arbitration,"  set  up  by  the 
Hague  Conference  of  1899  and  1907,  is  to  be  replaced  by  such  a 
"  Permanent  Court  of  International  Justice,"  or  whether  the  two 
tribunals  may  both  be  in  operation  at  the  same  time  is  not  indi- 
cated by  the  terms  of  the  treaty.  The  constituents  of  each  are 
at  present  not  the  same.  The  Hague  Tribunal  represents  all 
nations  that  were  parties  to  the  Hague  Convention  of  1907.  Any 
new  court,  organized  under  a  new  treaty,  would  represent  only  the 
powers  adhering  to  the  treaty  of  peace  of  1919.  Delicate  ques- 
tions are  evidently  here  presented  for  adjustment. 

A  treaty  between  Brazil  and  Uruguay,  framed  on  the  principle 
of  general  obligatory  arbitration,  was  concluded  December  27, 
1916,  and  promulgated  on  June  27,  1918.'' 

Every  dispute  whieli  cannot  l)e  settled  by  diplomatic  means  is 
to  be  referred  to  an  arbiter,  who  must  be  a  chief  of  state,  the 
president  of  a  superior  court  or  tribunal  of  Justice,  or  a  person 
generally  regarded  as  specially  conversant  with  the  subject  of 
dispute.  In  case  of  a  failure  to  agree  on  tlie  arbiter  the  contro- 
versy shall  be  submitted  to  the  Permanent  Court  of  Arbitration 
at  the  Hague. 

A  treaty  of  the  same  general  character  was  negotiated  in  191(5 
between  Spain  and  the  Argentine  Repul)lic. 

The  arbitration  tribunal  is  to  consist  of  three  persons,  one 
appointed  by  each  power,  and  those  two  to  select  an  umpire. 
Preferably  all  are  to  be  taken  from  the  list  of  members  of  the 
Hague  tribunal,  and  the  umpire  must  be. 

The  so-called  "  Bryan  treaties  "  generally  recognized  the  Per- 
manent Court  of  Arbitration  at  the  Hague  as  an  appropriate  tri- 
bunal for  proceedings  under  them. 

It  would  seem  to  be  safe  to  assume  that  the  absence  of  any  at- 
tempt in  the  pending  scheme  of  a  League  of  Xations  to  set  up  a 
new  court  of  arbitration  indicates  an  intention  to  recognize  that 
of  the  Hague  as  for  tlie  present  continuing  in  existence,  and  open 
to  all  the  world,  as  before. 

The  advantages  of  the  Central  American  Court  of  Justice, 
which  was  abandoned  after  ten  years  trial  in  1918,  are  becoming 

'Am.  Bar  Association  Journal,  V,  216. 
^Ihid.,  299. 


more  obvious  in  view  of  recent  occurrences.  Several  unsuccessful 
attempts  to  put  all  the  Central  American  Powers  on  a  peace 
footing  followed,  the  last  having  been  in  July,  1919,  when  Sal- 
vador proposed  to  Guatemala,  Honduras  and  Nicaragua  that  the 
four  republics  should  take  mutual  friendly  action  towards  se- 
curing the  domestic  peace  of  Costa  Rica,  and  normalizing  inter- 
national affairs  in  Central  America. 

It  is  to  be  hoped  that  something  in  this  direction  may  be  in 
fact  accomplished  by  the  good  offices  of  the  Second  Pan-American 
Financial  Conference,  which  meets  at  Washington  on  January 
12,  1920. 

Aerial  Xavigatiox. 

The  agreements  reached  by  the  Peace  Conference  have  been 
largely  bottomed  on  the  reports  of  special  commissions  of  experts 
which  it  appointed  from  time  to  time.  One  of  them  was  the 
"  Aeronautic  Connnission,"  which  grew  out  of  a  call  by  France,  in 
March,  1919,  of  an  international  Conference  on  Aerial  Naviga- 
tion. This  commission  sent  in  a  draft  convention  relative  to 
Aerial  Navigation  (Treaty  of  Peace,  Art.  319),  which  was 
adopted  and  signed  by  all  the  great  Powers  excepting  the  United 
States. 

It  recognizes  the  sovereignty  of  each  nation  over  the  air  above 
its  terxitorv^  but  on  terms  of  allowing  its  use  by  other  countries 
or  their  citizens  in  a  reasonable  manner. 

The  minimum  age  for  pilots  and  navigators  is  nineteen.  No  one 
can  be  an  aeronaut  without  a  license,  based  on  a  special  examina- 
tion, and  there  must  be  a  re-examijiation  every  six  months.  Any 
state,  party  to  the  convention,  can  increase  the  requirements,  but 
cannot  reduce  them. 

Special  Staxdixg  Commissions. 

Special  standing  commissions  to  consider  proper  subjects  of 
international  agreements,  or  administer  remedies  of  an  inter- 
national character,  have  been  greatly  multiplied  l)y  tlie  war. 

There  are  now  some  60  of  these  bodies  with  which  the  United 
States  has  relations  of  more  or  less  importance,  and  our  Depart- 
ment of  State  is  considering  the  establishment  of  a  new  bureau 
to  have  general  charge  of  foreign  intercourse  through  such  or- 
ganizations, so  far  as  they  fall  within  the  jurisdiction  of  the 
United  States, 


8 


Alien^s. 

The  rule  that  a  suit  may  he  brought  and,  so  far  as  necessary  to 
do  justice,  maintained  here  against  an  alien  enemy,  and  even 
by  one,  has  been  reaffirmed  by  the  Supreme  Court  of  the  United 
States.' 

In  the  Casdagli  case,  the  House  of  Lords  has  decided  that  in 
countries  where  foreigners  are  protected  by  extraterritorial  au- 
thority which  may  be  exercised  through  consular  jurisdiction,  a 
domicil  of  choice  may  be  acquired  by  residence  and  intention,  just 
as  freely  as  in  countries  where  foreigners  are  not  subject  to  extra- 
territorial privileges.* 

The  Immigration  Act  of  1917  was  amended  in  important  par- 
ticulars by  an  Act  of  October  KS,  1918.  It  now  provides  for  the 
deportation  of  "  aliens  who  are  anarchists ;  aliens  who  believe  in 
or  advocate  the  overthrow  by  force  or  violence  of  the  Government 
of  the  United  States  or  of  all  forms  of  law ;  aliens  who  disbelieve 
in  or  are  opposed  to  all  organized  government;  aliens  who  advo- 
cate or  teach  the  assassination  of  public  officials;  aliens  who 
advocate  or  teach  the  unlawful  destruction  of  property;  aliens 
who  are  members  of  or  affiliated  with  any  organization  that  enter- 
tains a  belief  in,  teaches,  or  advocates  the  overthrow  by  force  or 
violence  of  the  government  of  the  United  States  or  of  all  forms 
of  law,  or  that  entertains  or  teaches  disbelief  in  or  opposition  to 
all  organized  government,  or  that  advocates  the  duty,  necessity, 
or  propriety  of  the  unlawful  assaulting  or  killing  of  any  officer 
or  officers,  either  of  specific  individuals  or  of  officers  generally, 
of  the  Government  of  the  United  States  or  of  any  other  organized 
government,  because  of  his  or  their  official  character,  or  that 
advocates  or  teaches  the  unlawful  destruction  of  property." 

Eeference  was  made  in  the  annual  address  before  the  Bureau, 
last  year,  to  the  partial  suspension  of  regulations  governing 
immigration,  by  the  issue  of  what  are  called  "  war  emergency 
labor  permits."  The  Department  of  Labor  has  announced  that 
iTo  more  will  l)e  granted,  and  that  those  already  existing  will 
become  void  on  January  15,  1920. 

•Watts,  Watts  &  Co.  vs.  Unione  Austrica,  248  U.  S.,  21. 
•Casdagli  vs.  Casdagli,  87  L.  J.  P..  49. 


In  Peterson  vs.  Iowa,  245  F.  S.,  170,  it  was  held  the  treaty 
between  Denmark  and  the  United  States,  as  to  discrimination  in 
taxes,  did  not  alTect  the  right  of  one  of  our  states  to  impose  a 
higher  tax  on  Danes  to  whom  property  within  its  territory  came 
by  its  laws  than  tliat  paid  by  its  own  citizens  under  similar  cir- 
cumstances. 

The  Force  of  Interxatioxal  Law, 

As  the  smoke  of  Ijattle  clears  away,  we  are  Ijeginning  to  see 
more  clearly  that  the  last  five  years  have  left  international  law 
stronger  than  ever.  In  every  civilized  country  it  is  recognized 
as  a  rule  of  decision,  even  when  that  rule  has  bc^n  disregarded 
in  its  official  action. 

I  will  not  weary  you  by  quoting,  in  illustration  of  this,  froni 
judgments  of  the  courts  to  which,  in  previous  addresses  on  oc- 
casions like  this,  the  attention  of  the  bureau  has  been  called: 
such  as  the  Zamora,  in  England,  and  the  steamship  Apimni,  in 
the  United  States.^ 

The  foundations  of  the  Law  of  Xations  are  too  deeply  laid  in 
the  \Qry  heart  of  civilization  to  be  overthrown,  even  in  a  war 
involving  half  of  the  world. 

The  obligations  which  it  imposes  may  be  regarded  as  flowing, 
in  part  at  least,  from  the  doctrine  of  estoppel.  Every  nation 
which  accepts  international  law  as  a  governing  force  in  respect 
to  international  relations,  imjiliedly  agrees  with  other  nations 
to  continue  to  recognize  that  force  until  notice  to  the  contrary 
is  given ;  and  notice  in  advance.  It  is  thus  a  case  of  estoppel  in 
pais. 

The  project  for  a  League  of  Xations  forming  part  of  the  treaty 
of  peace  with  Germany  is  silent  as  to  questions  of  further  defini- 
tions or  rules  of  international  law. 

In  view  of  this,  the  Executive  Council  of  the  x^merican  Society 
of  International  Law,  in  ]\Iarch,  1919,  adopted  a  vote  urging  the 
Paris  Conference  to  provide  for  a  general  conference  of  the 
Powers  to  meet  within  the  next  five  years,  not  earlier  than  1921 
to  review  the  condition  of  international  law,  and  state  it  in 
authoritative  forms. 

^243  U.  S.,  124. 


10 

The  German  Attitude  Towards  International  Law. 

The  Constituent  German  National  Assembly,  which  was  opened 
in  February,  1919,  will,  under  the  new  Constitution  which  it  has 
framed,  succeed  to  the  powers  of  the  Reichstag,  but  preserve  its 
present  name. 

In  August,  1919,  it  inserted  in  the  draft  of  the  Constitution  a 
provision  that  the  generally  accepted  niles  of  international  law 
shall  be  a  basic  part  of  German  law. 

The  Constitution  as  adopted  contains  these  provisions : 

The  President  shall  be  chosen  by  direct  popular  vote  on  the 
basis  of  universal  suffrage.    His  term  is  seven  years. 

The  legislative  powers  of  the  several  states  are  greatly  curtailed. 

In  the  Imperial  Council  each  state  will  have  at  least  one  vote, 
but  in  no  case  more  than  two-fifths  of  the  total  number  that  may 
be  cast  by  all.    Prussia  thus  loses  her  predominance. 

State  courts,  to  try  those  accused  of  political  crimes,  will  be 
created  by  an  imperial  law. 

Xo  German  can  accept  a  title  or  decoration  from  a  foreign  gov- 
ernment. 

All  men  and  women  have  equal  rights,  and  no  special  privi- 
lege can  be  recognized  based  on  birth  or  social  status ;  but  exist- 
ing ranks  of  nobility  are  not  abolished. 

All  citizens  of  Germany  are  to  have  complete  freedom  as  to 
religion.    'No  state  church  is  to  exist. 

Private  schools  for  children  cannot  be  set  up  without  leave 
of  the  government.  In  all  schools  efforts  are  to  be  made  to  edu- 
cate their  students  in  the  spirit  of  the  German  jDeople  and  of 
reconciliation  with  the  peoples  of  the  world. 

The  Espionage  and  Draft  x\cts. 

The  Supreme  Court  of  the  United  States  have  affirmed  the 
validity  of  the  Espionage  Act  as  amended  in  1917.  Nearly  a 
thousand  prosecutions  have  been  instituted  under  it,  about  a 
third  of  which  resulted  in  convictions. 

Under  the  Selective  Draft  Act  about  12,000  prosecutions  were 
instituted,  and  over  8000  convictions  obtained.* 

•  This  Act  was  held  valid  by  the  Supreme  Court  in  the  Selective 
Draft  Law  Cases,  245  U.  S.,  366. 


11 

The  war  found  ns  Avitli  treaties  made  witli  various  powers 
stipulating  that  their  citizens,  residiii*^  liere,  shoukl  not  be  liable 
to  be  drafted  into  compulsory  military  service.  Some  of  them 
were  in  fact  drafted  under  the  Selective  Draft  Act. 

The  annual  report  of  the  attorney-general  contains  this  para- 
graph in  reference  to  the  legal  question : 

"May  the  subject  of  a  neutral  country  be  drafted  into  the 
military  service  when  the  treaty  between  his  country  and  this 
country  provides  to  the  contrary?  Our  courts  have  unanimously 
held  that  the  Selective  Service  Act  supplants  all  previously  exist- 
ing conflicting  treaty  provisions  on  the  subject." 

A  decision  of  the  District  Court  has  been  made  to  this  effect, 
in  regard  to  our  treaty  with  Spain  °  and  the  doctrine  that  the 
later  of  two  inconsistent  laws  emanating  from  the  same  sovereign 
controls  in  his  courts  is  well  settled.  That  we  have  broken  our 
bargain  with  Spain  cannot  affect  the  legal  situation  in  American 
courts,  however  it  may  involve  our  national  good  faith. 

The  states  are  following  in  the  same  lines,  in  support  of  their 
right  of  conscription.  Maine,  this  year,  made  her  citizens  liable 
to  draft  for  the  militia  of  the  state,  that  is,  the  national  guard, 
whenever  there  are  not  men  enough  in  the  guard  to  fulfil  the  re- 
quirements of  the  Act  of  Congress  respecting  allowances  from 
the  United  States  towards  its  support. 

The  Protectiox  of  Equal  Laavs, 

The  tendency  is  growing  stronger  every  year  to  give  a  liberal 
construction  to  the  personal  guarantees  of  the  fourteenth  amend- 
ment to  the  Constitution  of  the  United  States. 

A  statute  of  Iowa,  making  it  a  misdemeanor  for  an  employee 
of  a  hotel  or  barber  to  accept  a  tip,  has  been  held  unconstitu- 
tional, on  the  ground  that  as  the  employers  were  left  free  to  accept 
tips,  the  employees  did  not  receive  the  equal  protection  of  the 
law." 

A  Kentucky  statute  has  been  declared  void,  which  provided 
that  none  of  the  taxes  raised  from  the  property  of  a  Avhite  person 
or  corporation  shall  be  used  for  the  support  of  colored  common 
schools,  and  that  the  taxes  raised  from  property  of  colored  persons 
shall  not  be  used  for  the  support  of  white  schools. 

^  Ex  parte  Larrucea.  249  Fed.  Rep..  981. 
'"Dainahoo  vs.  Huber,  171  Northwestern  Rep.,  123. 


12 

It  was  held  that  the  attempt  to  assign  all  taxes  upon  corpora- 
tions to  white  schools  was  violative  of  the  "  equal  protection  " 
clause  of  the  State  Constitution. 

Intoxicating  Liquors. 

A  War  Time  Prohibition  Act,  styled  a  Food  Conservation  Act, 
which  was  approved  by  the  President  a  few  days  after  the  armis- 
tice (November  21,  1918)  went  into  effect  on  July  1,  1919.  It 
forbids  tlie  manufacture  or  sale  of  intoxicating  liquors  for  bever- 
age ])ur})oses  after  that  date,  and  is  to  continue  in  force  during 
the  world  war  and  until  the  President  proclaims  the  completion 
of  demobilization.  It  purports  to  be  designed  to  promote  the 
use  of  grain  as  food,  and  prevent  its  use  for  brewing  or  distilling 
purposes.    I^o  penalties  for  the  violation  of  the  act  are  provided. 

The  eighteenth  amendment  to  the  Constitution  of  the  United 
States  becomes  operative  on  January  16,  1920.  It  prohibits  the 
manufacture,  sale,  transportation,  export  or  import,  of  intoxi- 
cating liquors,  but  does  not  define  what  shall  be  deemed  to  be  such 
liquors.  Conflicting  decisions  have  been  rendered  in  the  United 
States  District  Courts,  as  to  whetlier  beer  containing  not  more 
than  2f  per  cent  of  alcohol  is  intoxicating.  The  Circuit  Court 
of  Appeals  for  the  New  York  Circuit  holds  this  to  be  a  justiciable 
question  of  fact.  Appeals  have  been  taken  which  will  present  this 
point  before  the  Supreme  Court  of  the  United  States  next  month. 
The  attorney-general  claims  that  beer  is  intoxicating  which  con- 
tains more  than  1^  per  cent  of  alcohol. 

Ehode  Island  passed  a  bill  last  April  declaring  that  beer  con- 
taining not  over  -1  per  cent  of  alcohol  was  not  an  intoxicating 
liquor. 

The  beer  commonly  used  in  Germany  before  the  war  contained 
10  or  11  per  cent  of  alcohol.  Tlie  war  cut  it  down  to  3  per  cent. 
The  books  of  the  Kew  York  Life  Insurance  Company,  which  for 
many  years  has  done  a  large  business  there,  show  that  for  tlie  11 
years  before  the  war  the  total  mortality  among  those  whom  it 
insured  was  107  per  cent  of  the  company's  standard  mortality, 
calculated  for  all  risks  in  all  countries;  whereas  during  the  four 
years  including  the  war  the  percentage  was  only  9,")  ])er  cent.  This 
shows  that  there  was  a  much  higher  rate  of  mortality  during  the 
times  of  peace,  and  the   friends  of  prohil)ition   claim  this   as 


13 

evidence  of  the  beneiicial  circcts  of  rcsti'i(ti<iii<  on  tlie  diet  and 
drink  of  the  German  people. 

An  Act  of  Congress,  forhidiliii^u  ihc  importation  into  a  '"  dry  " 
state  of  intoxicating  liq\ior,  though  only  for  the  personal  use  of 
the  importer,  was  held  a  \alid  regulation  of  interstate  commerce 
in  United  States  r.s'.  Hall,  '^48  U.S.,  420. 

The  civilized  world  will  look  with  the  greatest  interest  on  our 
adoption  of  virtual  prohibition,  as  to  most  people,  of  drinking 
intoxicants  as  a  matter  of  constitutional  policy.  A  great  church 
has  vcntuivd  on  the  oxjiorinicnt  l)ofore;  a  great  nation  never. 

Xew  Zealand  has  u  licensing  system.  In  June,  ll»lit,  a  popular 
vote  was  taken  on  substituting  the  rule  of  prohibition.  This 
proposition  was  defeated  by  a  majority  of  over  10,000.  The  sol- 
diers' votes  were  decisive.  Out  of  nearly  40,000  of  these,  less  than 
32,000  were  for  prohibition.  The  other  voters  numbered  about 
478,000,  of  whom  prohibition  was  favored  by  246,000. 

Peru  has  passed  a  law  forbidding  sale  or  consumption  of  alco- 
holic drinks  on  Saturdays  and  Sundays;  and  also  a  law  providing 
for  anti-alcohol  instruction  in  schools.  It  deprives  habitual 
drunkards  of  citizenship. 

One  of  the  conspicuous  agencies  of  the  United  States  in  win-  • 
ning  the  war  Avas  the  National  Eesearch  Coimcil,  which  in  many 
directions  brought  science  to  our  aid.  Its  ''  Psychology  Com- 
mittee," co-operating  with  the  "  Division  of  Psychology  of  the 
Medical  Department,"  in  the  office  of  the  surgeon-general,  the 
"  Committee  on  Clarification  of  Personnel  in  the  Army,"  and  the 
"  Psychological  Section  of  the  Medical  Belief  Board,"  set  out 
to  secure  the  use  of  the  best  material  for  each  kind  of  military 
service  among  the  enlisted  men  and,  to  a  certain  extent,  among 
the  officers.  The  right  men  were  to  be  found  for  each  particular 
class  of  functions,  and  found  by  the  aid  of  close  scientific  tests. 
In  the  final  outcome  all  commissioned  officers,  except  general  and 
field  officers,  were  subjected  to  a  psychological  examination. 

The  results  achieved,  either  wholly  or  in  great  part,  were  giving 
a  rating  to  every  soldier ;  special  assignments  of  men  securing  a 
high  rating;  turning  over  for  special  modes  of  development  men 
of  low  mentality;  and  eliminating  those  of  hopeless  inferiority. 


14 

The  mentality  of  over  45,000  men  was  found  to  be  no  greater  than 
that  of  a  child  of  ten,  and  of  these  a  tenth  stood  no  liigher  in 
tests  of  intellect  and  character  than  an  ordinary  boy  of  seven." 

A  million  and  three  quarters  were  thus  examined,  including 
41,000  commissioned  officers. 

On  August  3,  1918,  the  Secretaries  of  the  Army  and  the  Navy 
issued  regulations  to  suppress  during  the  war  all  prostitution  and 
aiding  and  abetting  it  in  any  way  within  10  miles  of  any  military 
or  naval  station.  This  was  done  under  the  authority  of  the 
Army  Appropriation  x\ct  of  July  9,  1918,  -which  authorizes  such 
measures  to  be  made  effective  within  a  reasonable  distance  of 
such  stations. 

A  former  President  of  this  Association  has  recently  said,  in 
a  public  address,  that  the  government  of  the  United  States, 
hitherto  believed  to  be  a  government  of  limited  powers,  has 
become,  under  the  decisions  of  the  Supreme  Court,  a  government 
of  unlimited  poAver,  at  least  in  time  of  war.^^ 

India  as  a  Me:\iber  of  the  British  Empire. 

Great  Britain  has  pursued,  during  the  past  year,  the  policy  ini- 
tiated by  Lord  Morley  of  extending  the  official  influence  of 
Indians  in  India,  but  with  the  growing  impression  that  his  re- 
forms have  so  worked  out  as  to  give  them  neither  the  best  of  the 
former  system,  nor  the  best  of  the  new.  A  report  by  the  Secretary 
of  State  for  India  and  the  Viceroy,  presented  to  Parliament  a  few 
months  since,  indicates  that  the  government  is  prepared  to  go 
further  and  create  without  delay,  in  the  nuijor  provinces,  minis- 
tries that  are  in  some  matters  responsible  to  the  people.  The 
government  of  India,  as  a  whole,  will,  as  now,  proceed  from 
F'arliament  and  remain  wholly  responsible  to  Parliament,  but  the 
Indian  Legislative  Council  will  be  more  representative  and  influ- 
ential, and  divided  into  two  Houses,  the  Upper  to  be  the  final 
legislative  authority  on  points  deemed  essential  by  the  govern- 
ment. The  erection  of  a  Privy  Council  and  a  Council  of  Princes 
is  also  contemplated,  two  l)odics  which  seem  ratlier  a  concession 
to  the  natural  craving  in  tlie  East  for  glitter  and  show, 

"  Science.  March  7,  1919,  226. 

"  Moorfield  Storey,  Address  on  Obedience  to  Law,  at  the  opening 
of  Petigrew  College. 


15 

The  report  states  that  the  conception  of  the  eventual  future 
of  India  entertained  by  the  two  great  officers  who  unite  in  sub- 
mitting it  is  that  it  should  be  made  "  a  sisterhood  of  states,  self- 
governing  in  all  matters  of  purely  provincial  interest,  and  pre- 
sided over  by  a  central  government,  increasingly  representative  of, 
and  responsible  to,  the  people  of  all  of  them,  dealing  with  matters, 
both  internal  and  external,  of  common  interest  to  the  whole  of 
India." 

Water  Termixals. 

An  important  step  has  l^een  taken  by  Congress  towards  extend- 
ing federal  aid  to  harbor  improvements.  It  appears  in  the  Eiver 
and  Harbor  Act  of  March  2,  1919,  and  reads  thus  : 

"  It  is  hereby  declared  to  be  the  policy  of  tlic  Congress  that 
Avater  terminals  are  essential  at  all  cities  upon  navigable  water- 
ways and  that  at  least  one  terminal  should  exist,  owned  by  the 
municipality  or  other  public  agency  of  the  state  and  open  to  the 
use  of  all  on  equal  terms." 


Public  Education. 

The  Act  of  Parliament  passed  in  the  summer  of  1919,  founded 
on  the  bill  presented  in  1917  by  the  Minister  of  Education, 
greatly  extended  the  bounds  of  teaching  in  public  schools,  and 
essentially  democratized  the  whole  educational  system  of  England. 

The  city  of  Xew  York  has  made  an  appropriation  of  $50,000 
for  school  lunches  during  1919.  Heretofore  they  Avere  furnished 
by  private  charitable  societies. 

Several  states  have  made  provision  for  the  Americanization  of 
those  of  their  inhabitants  who  do  not  speak  and  Avrite  English. 
One  of  the  most  drastic  of  these  statutes  Avas  passed  this  year  by 
South  Dakota.  It  is  designed  to  secure  the  compulsory  education 
of  any  person  betAveen  16  and  21  years  of  age,  who  does  not 
s])eak,  read  and  write  the  English  language.  Evening  schools  are 
provided,  Avhich  teacli  it.  At  these,  persons  of  from  21  to  50  years 
of  age  may  receive  free  instruction  in  English. 

NeAv  York  has  enacted  a  similar  law,  Avhich  A\ent  into  effect  on 
September  1. 


16 

In'ITIATIVE  AXD  PiEFERENDUM. 

In  Maine,  the  tSuprenie  Judicial  Court,  in  August,  1919,  gave 
its  opinion  to  the  Governor,  that  the  legislature  of  that  state 
having  ratified  the  Xational  Prohibition  Amendment,  it  could 
not  afterwards  he  submitted  to  a  popular  referendum.  The  case 
had  been  closed. 

An  initiative  and  referendum  law  passed  by  Manitoba  has  been 
held  void  by  the  Imperial  Privy  Council,  on  the  ground  that  the 
Province  has  iio  ])ower  to  make  laws  by  the  direct  vote  of  the 
people,  Init  only  through  its  legislative  assembly. 

Forms  of  Judicial  Proceedings. 

Michigan,  in  1919,  passed  a  law  authorizing  suits  to  obtain 
a  merely  declaratory  judgment,  decree  or  order,  and  the  court 
in  such  cases  may  make  binding  declarations  of  rights,  whether 
any  consequential  relief  is  or  could  be  claimed,  or  not;  including 
the  determination,  at  the  instance  of  anyone  claiming  to  be  inter- 
ested under  a  deed,  will  or  other  written  instrument,  of  any 
question  of  construction  arising  imder  the  instrument  and  a 
declaration  of  the  rights  of  the  parties  interested. 

The  "Juries  Act"  of  July  30,  1918,  in  England,  greatly 
reduces  the  opportunities  there  for  a  trial  Ijy  jury.  It  is  not  a 
matter  of  right,  unless  on  issues  of  fraud,  li])el.  slander,  malicious 
prosecution,  false  imprisonment,  seduction,  or  breach  of  promise 
of  marriage.  Xor  does  it  obtain  in  petty  cases  involving  a  value 
of  less  than  io." 

Largely  through  the  efforts  of  the  American  Bar  Association, 
Congress  enacted  (Febiniary  26, 1919)  a  bill  that  judgment  in  ap- 
pealed cases  in  the  courts  of  the  United  States  shall  be  given 
without  regard  to  technical  errors,  or  defects,  or  to  exceptions 
which  do  not  affect  the  substantial  rights  of  the  parties.  This 
adopts  a  policy  which  was  already  established  in  a  majority  of  the 
states,  and  supj^orted  by  a  strong  and  outspoken  public  sentiment. 

A  recent  instance  of  the  need  of  such  legislation  is  given  by  the 
case  of  People  vs.  Goldberg,  in  Illinois."  The  defendant  was 
charged  with  50  illegal  sales  of  liquor,  in  50  counts.  In  one  count 
the  name  was  written  Holdherg.     In  the  rest  it  was  written 

"  Am.  Bar  Association  Journal,  V,  290. 
"122  Northeastern  Rep.,  530. 


v 


17 


Goldherg.  A  general  verdict  was  rendered  against  liim,  and  a 
motion  in  arrest  of  judgment  was  denied.  The  Supreme  Court, 
on  apjieal,  found  error  and  remanded  \\\v  cause. 

It  will  be  recollected  that  for  more  than  20  years  a  con- 
vention has  existed  between  most  of  the  powers  of  Continental 
Europe  regulating  the  modes  of  proceeding  in  courts  of  justice 
for  the  enforcement  of  rights  of  citizens  of  one  of  them  against 
citizens  of  another.  Tliis  convention,  in  its  present  form,  was 
framed  by  an  official  conference  of  nations  held  at  the  Hague  in 
1894,  for  the  advancement  of  international  private  law.  It  went 
into  effect  in  1S!)5  and  has  beeii  renewed  from  time  to  time  with 
certain  amendments,  in  periods  of  five  years.  The  treaty  of  peace 
(Art.  287 )  between  the  Allied  and  Associated  Powers  and 
Germany,  now  pending  for  ratification,  makes  the  rules  of  this 
convention  as  to  civil  procedure  apply  to  suits,  of  the  character 
mentioned,  in  the  courts  of  any  and  all  the  signatory  powers,  ex- 
cept France,  Portugal  and  Eoumania. 

This  is  an  interesting  illustration  of  the  possibilities  of  en- 
larging the  scope  of  existing  international  relations,  by  new  ad- 
hesions to  old  conventions." 

At  the  Hague  Convention  of  ]  894,  the  United  States  was  not 
represented,  and  until  now  it  has  never  sought  to  adhere  to  it. 
The  treaty  of  Paris  brings  it  squarely  in.  A  beneficial  measure 
of  European  origination  has  therefore  (or  will  have,  if  the  treaty 
is  ratified)  been  carried  over  to  America,  as  well  as  to  other 
continents. 

There  would  seem  to  be  no  objection  on  j)rinciple  to  this  ex- 
ercise of  the  treaty  power,  and.  it  would  greatly  promote  com- 
mercial intercourse  of  Americans  with  foreign  countries.  If, 
to  mention  one  instance,  they  have  occasion  to  sue  in  a  foreign 
court,  no  Ijond  or  deposit  for  the  costs  of  suit  will  l)e  required; 
but  if  the  action  fail,  a  judgment  for  costs  will  be  given,  which 
can  be  collected  in  the  courts  of  the  })laintiff's  country. 

"  Progress  of  Continental  Law  in  tlie  19tli  century,  Continental 
History  Series,  XI,  506. 


18 


Forms  of  Legislative  Proceedings. 

The  growing  practice  in  the  states  of  appointing  special  par- 
liamentary draftsmen  has  now  been  followed  by  the  United 
States. 

By  a  recent  act  of  Congress,  technical  aides  in  the  matter  of 
putting  proposed  legislation  in  pro])er  form  have  been  provided 
for  each  house. 

Wisconsin  is  the  first  state  in  the  world  to  authorize  the  use 
of  automatic  voting  machines  in  legislative  ]3roceedings.  They 
are  operated  by  electricity,  and  have  now  been  employed  for  two 
sessions,  to  general  satisfaction. 

There  are  push  buttons  on  the  desk  of  each  member,  connected 
with  a  bulletin  board  on  which  are  the  names  of  all.  As  compared 
with  the  process  of  oral  voting,  the  new  device  saves  99  per  cent 
of  the  time  formerly  taken  by  a  roll  call  of  yeas  and  nays.  That 
time  in  the  House  of  Eepresentatives  of  the  United  States  is 
about  45  minutes. 

Forms  of  Commercial  Transactions, 

The  provisions  in  the  Pomerene  Act  of  1916  against  frauds 
in  altering  spurious  bills  of  lading,  were  sustained  in  June,  by 
the  Supreme  Court,  in  United  States  vs.  Ferger,  as  protecting  an 
important  instiiimentality  of  foreign  and  interstate  commerce. 

A  law  has  been  enacted  by  Umguay  requiring  the  use  of  the 
metric  system  in  all  trade  transactions. 

Another  step  has  been  taken  in  Latin-America  towards  a  break 
with  ancient  Latin-American  practice  in  favor  of  methods  early 
inlierited  from  England  by  ISTorth  America. 

Brazil  has  passed  a  law  authorizing  contracts  to  be  made 
without  the  intervention  of  a  notary  public.  They  can  hereafter 
be  executed  by  tlie  parties  before  two  witnesses  and,  when  the 
signatures  are  acknowledged  can  be  recorded  on  tlie  public 
records.  They  may  be  typewritten  or  ])rinted,  I)ut  the  parties 
must  sign  or  "  rubricate  "  each  page. 

Co-Operative  Stores. 

The  governmental  control  of  ])rices  during  the  war  has  had  one 
unexpected  effect  in  England. 


19 

The  co-operative  stores  in  C.reat  Britain  have  a  membership  of 
three  or  four  millions.  They  can,  of  course,  buy  at  the  retail 
prices  fixed  by  the  government.  By  their  co-operative  rules  their 
members  Imve  a  dividend  from  any  profits  earned  on  all  purchases 
which  they  may  make.  In  other  words,  they  have,  in  the  end,  a 
preference  over  all  other  jnirchasers,  and  to  that  extent  may  be 
said  to  pay  in  eflVct  less  than  the  general  public  for  the  articles 
officially  priced. 

Mattees  of  Eeligiox. 

Wiiile  the  degrees  of  LL.  1).  and  J.  U.  1).  refer  equally  to  the 
canon  and  the  civil  law,  there  have  for  some  centuries  been  scant 
opportunities  for  the  legal  profession  to  study  the  former,  on 
account  of  its  bulk  and  want  of  scientific  arrangement.  Pope 
Pius  X  initiated  its  codification  in  1904,  and  this  was  completed 
in  1917,  under  the  auspices  of  Pope  Benedict  XV,  when  the  result 
of  the  work  was  promulgated,  the  code  to  take  effect  ]\Iay  19, 
1918.  An  enormous  mass  of  ecclesiastical  jurisprudence  has  been 
thus  reduced  to  a  volume  of  about  450  pages. 

By  the  Treaty  of  Berlin,  in  1<S78,  Koumania  pledged  herself 
to  give  citizenshi])  and  equal  civil  rights  to  her  Jewish  inhab- 
itants. 

On  May  28,  1919,  this  pledge  was  finally  fulfilled,  by  a  royal 
decree. 

In  Mexico  a  presidential  decree  has  greatly  changed  her  laws 
as  to  marriage  and  divorce.  ]\Iarriage  is  regarded  by  the  state 
as  a  civil  contract,  not  a  church  sacrament.  The  parties  pro- 
posing it  must  present  certificates  from  two  or  more  licensed 
physicians  that  they  are  each  of  sound  mind  and  body.  Absolute 
divorces  are  allowed.  Heretofore,  following  the  canon  law,  they 
could  only  l)e  from  l)ed  and  board.** 

Criminal  Law. 

Missouri  has  restored  capital  punishment.  It  is  to  be  inflicted 
by  hanging. 

Texas  has  amended  her  Constitution  so  as  to  permit  testi- 
mony by  deposition  against  one  on  trial  on  a  charge  of  crime. 

"Am.  Bar  Association  Journal,  V,  245. 


20 

Vermont  has  adopted  tliis  year  the  system  of  conditional  par- 
don by  the  Governor  upon  such  conditions  as  he  thinks  proper. 
He  has  all  the  powers  over  the  convict  which  he  would  have  if  he 
were  surety  in  the  case  upon  the  recognizance  of  such  convict 
before  conviction,  and  shall  be  the  sole  judge  as  to  whether  the 
conditions  of  such  pardon  have  been  violated. 

Elections  and  Yotixg. 

The  new  English  election  laws  allow  nearly  every  citizen  to 
become  a  candidate  for  member  of  Parliament,  but  only  if  he 
puts  up  a  forfeit  of  £150.  If  he  obtains  as  many  as  an  eighth  of 
all  the  votes  cast,  the  money  is  returned  to  him,  otherwise  being 
turned  into  the  public  treasury. 

An  important  point  of  constitutional  construction  was  settled 
last  winter  by  the  Supreme  Court  of  the  United  States,  in  Mis- 
souri Pacific  Eailway  Co.  vs.  Kansas,  248  XT'.  S.,  276,  599.  This 
decision  supports  the  doctrine  that  two-thirds  of  the  senators 
present  can  overrule  a  Presidential  veto,  although  less  than  two- 
thirds  of  the  senators  elected. 

Although  in  Canada,  under  the  Dominion  Constitution,  a 
right  was  reserved  to  the  Govemor-General-in-Council  to  veto  any 
provincial  legislation,  it  has  very  rarely  been  used.  The  jealousy 
of  the  people  in  respect  to  executive  power,  has  led  to  the  same 
result  there  as  in  England.  The  general  feeling  has  been  that 
as  the  Crown  has  practically  al^andoned  the  veto,  as  to  Acts  of 
Parliament,  the  Governor-General,  who  is  in  principle  a  reflec- 
tion of  regal  aiithority  in  and  for  the  Dominion,  should  not 
resort  to  it  to  overthrow  the  legislative  policy  of  a  Province. 

Under  a  recent  decision  of  the  Judicial  Committee  of  the 
Privy  Council  it  seems  to  be  settled  that  a  Provincial  statute  can- 
not be  held  void  l)ecause  it  takes  away  vested  property  interests. 
We  in  the  Ignited  States  had  to  adopt  the  fourteenth  amendment 
to  the  Constitution  to  ]ire\ent  such  legislation  on  the  part  of  a 
state  of  the  union.  In  Canada  there  is  no  such  protection  unless 
by  the  veto  power  of  the  Governor-General-iri-Council.  That 
she  does  have  it  by  tlie  exercise  of  that  power  is  now  determined 
by  an  Order-in-Council  of  May  30,  1918.  Mr.  Justice  Eiddell's 
well-known  remark  that  the  rule  of  the  Decalogue  "  Thou  shalt 
not  steal "  was  not  liinding  on  the  legislature  of  a  Canadian  prov- 


21 

ince,  is  no  longer  true  in  view  of  this  decision;  but  it  goes  no 
farther  than  to  provide  a  remedy  for  depreciation  of  property 
plainly  amounting  to  virtual  confiscation. 

Switzerland  has  amended  her  Constitution  so  that  elections  to 
the  N'ational  Council  are  made  in  the  respective  cantons  or  half 
cantons  on  the  principle  of  proportionate  representation,  and 
regulated  by  federal  legislation," 

Wurtemberg,  in  her  new  Constitution  as  a  free  state,  has 
adopted  the  same  principle  for  the  elections  to  the  legislative 
assembly. 

Idaho  has  repealed  so  much  of  her  direct  primary  law  as  applied 
to  state  officers  and  representatives  in  Congress.  They  will  here- 
after be  nominated  in  the  old  way  by  party  conventions. 

In  Xorth  Dakota  a  statute  has  been  enacted  to  give  all  public 
advertising  to  one  newspaper  in  each  county.  If  there  are  several 
newspapers  puljlished  there,  one  of  them  is  to  be  elected  by  a 
popular  vote. 

Massachusetts  has  amended  her  Constitution  so  as  to  give  her 
legislature  authority  to  provide  for  compulsory  voting  at  elections. 
This  measure  was  adopted  on  a  referendum  by  a  majority  of  less 
than  6000,  out  of  a  total  voting  strength  of  430,000. 

This  reversion  to  a  policy  adopted  by  several  of  the  early  Ameri- 
can commonwealths,  but  long  abandoned,  indicates  that  a  large 
portion  of  the  people  are  dissatisfied  with  giving  a  vote  to  those 
who  do  not  care  to  use  it.  The  plan  of  compulsion  has  worked 
well  for  many  years  in  several  foreign  countries.  The  other 
states  will  watcli  with  strouir  interest  its  treatment  bv  the  Gen- 
eral  Court  of  ^rassachusetts, 

"  Am.  Bar  Association  Journal,  V,  307. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


Form  L9-30m-ll,'58(.8268s4)444 


— e^ffl""" 


K 


Baldwin  - 


The   grovrbh  of 
lB193g  law  during  the 
past  year 


■mncDV 


'  I 


-   iQcn 


K 
50 

AlB193g 


AA    000  628  653    8 


